Tarun Agarwala, J. - (1.) HEARD Sri M.A. Qadeer, the learned counsel for the plaintiff -petitioner and Sri T.A. Khan, the learned counsel for the defendant -respondent. A written statement was filed by the defendant on 3.10.2002. Thereafter, the defendant filed an application on 2.8.2004 praying for an amendment of the written statement and to bring on record a counter claim. This application was opposed by the plaintiff. The trial court by an order dated 10.9.2004 allowed the amendment of the written statement permitting the defendant to incorporate the counter claim in his written statement. A revision was filed by the plaintiff which was rejected by an order dated 24.3.2005. Consequently, the writ petition.
(2.) THE learned counsel for the petitioner submitted that in view of the mandatory provision of. Order 8 Rule 6A of the C.P.C., the amendment could not be allowed, inasmuch as, the counter claim, if any, could be filed where the cause of action accrues to the defendant against the plaintiff either before or after the filing of the suit but before the defendant had delivered his defence. It was urged that the written statement was filed on 3.10.2002 and in the application for amendment, the cause of action, as alleged by the defendant arose on 31.7.2004, therefore, the cause of action accrued after the filing of the written statement which cannot be permitted under Order 8 Rule 6A. The submission of the learned counsel for the petitioner appears to be correct. Order 8, Rule 6A of the C.P.C. provides as under: - - 6 -A. Counter -claim by defendant. -(1) A defendant in a suit may, in addition to his right of pleading a set -off under Rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not; Provided that such counter -claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter -claim shall have the same effect as a cross -suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter -claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter -claim of the defendant within such period as may be fixed by the Court. (4) The counter -claim shall be treated as a plaint and governed by the rules applicable to plaints.
(3.) A perusal of the aforesaid provision indicates that a counter claim could be filed where the cause of action accrued either before or after the filing of the suit and, in any case, before the filing of the written statement. The counter claim cannot be filed where the cause of action accrued to the defendants after the filing of the written statement. In the present case, the written statement was filed on 3.10.2002 and -the cause of action, as admitted by the defendant, accrued on 31.7.2004, i.e., after the filing of the written statement. Clearly the said -counter claim could not be filed in the present proceedings in view of the mandatory provision of Order 8 Rule 6A of the C.P.C.;